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Colo. AG asks state Supreme Court to stop gay marriages in Boulder County

Suthers: Hall causing 'statewide confusion and legal chaos'

By Mitchell Byars, Camera Staff Writer

Posted:
07/28/2014 10:16:47 AM MDT

Updated:
07/28/2014 05:07:32 PM MDT

James Patterson, right, and S. Flemming Beasley kiss after signing their marriage license at the Boulder Counter Clerk and Recorder's Office in Boulder on Monday, Attorney General John Suthers has asked the state Supreme Court to stop Boulder County Clerk Hillary Hall from issuing marriage licenses to same-sex couples. (Mark Leffingwell / Daily Camera)

Colorado Attorney General John Suthers escalated his efforts to stop gay marriage in Boulder County, asking the state Supreme Court on Monday to block Clerk Hillary Hall from issuing licenses to same-sex couples.

In his motion to the state's highest court, Suthers argues that Boulder County — the only county in Colorado currently issuing marriage licenses to same-sex couples — is causing "statewide confusion and legal chaos."

"The attorney general recognizes that this is an extraordinary request, but there is no question that this is an extraordinary situation," Suthers wrote. "The question before this court is simple: Should a single county clerk issue same-sex marriage licenses before the federal constitutional question has been settled? No. Uniformity of Colorado law and basic fairness demand as such."

Boulder County Clerk Hillary Hall (Mark Leffingwell/ Daily Camera)

But Hall pointed out, in a statement released later in the day, that a Boulder District Court judge and the state Court of Appeals already have spoken.

"I don't think the Colorado Supreme Court needs to hear this issue now that two other courts have decided the issue in my favor," Hall said in the statement. "I will, however, respect any decision that the Colorado Supreme Court decides to make."

Hall began issuing marriage licenses to same-sex couples June 25 after the 10th U.S. Circuit Court of Appeals ruled Utah's ban unconstitutional. Her office has issued 199.

Hall also pointed to a ruling Monday by the 4th U.S. Circuit Court of Appeals that found Virginia's same-sex marriage ban to be unconstitutional.

"The 10th Circuit Court of Appeals stated that marriage is a fundamental right, and (on Monday) the 4th Circuit issued an opinion coming to the same conclusion," Hall said. "I think the least harmful and most sensible solution is to continue to issue marriage licenses in order to avoid more potential civil rights violations."

Motion twice denied in Boulder

Suthers previously filed suit in Boulder District Court seeking an emergency injunction to stop Hall, asserting she was causing the state harm by issuing the licenses. But Boulder District Judge Andrew Hartman has twice denied the motion.

The Colorado Court of Appeals also upheld Hartman's ruling after Suthers filed an appeal.

Shortly after Hartman's initial ruling, Hall was joined by clerks in Denver and Pueblo counties in issuing licenses to same-sex couples.

But on July 18, the Colorado Supreme Court issued a stay to stop Denver from issuing marriage licenses to same-sex couples in connection with a joint Denver/Adams County case.

Suthers said in his motion Monday that he felt that ruling made it clear that other counties also were to stop issuing licenses to same-sex couples — as Pueblo County did.

"To be sure, the attorney general had expected that other clerks, acting on behalf of the state, would understand that an order directing the Denver clerk to stop issuing same-sex marriage licenses would counsel against other clerks engaging in identical conduct," Suthers wrote. "(Hall) alone continues to issue same-sex marriage licenses, contrary to current Colorado law, and in contravention of the uniform nature of Colorado's marriage laws."

'Suthers has tried four times and failed'

But Professor Tom Russell of the University of Denver's law school, who is representing a couple in the Adams County gay marriage case that was married by Hall, said he felt the filing was unclear as to whether Suthers is appealing the decision by Hartman or the state appeals court.

"Suthers has tried four times and failed to stop Hillary Hall," Russell said. "Now he is appealing to the Supreme Court, and it's not entirely clear to me, procedurally, if he is appealing Judge Hartman's denials or the court of appeals' denial. Procedurally, as with his other efforts to stop Clerk Hall, I'm not sure he has handled the procedure right."

But Russell did say that, in the wake of the state Supreme Court stopping the Denver clerk from issuing licenses to same-sex couples, Suthers might have a chance.

"So maybe on this, the fifth time, the attorney general will succeed, but I can't say for sure," he said

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